Citation Nr: 0834651
Decision Date: 10/08/08 Archive Date: 10/16/08
DOCKET NO. 02-01 028A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for cancer of the larynx,
claimed as due to exposure to herbicides during service.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The appellant had active military service from August 1962 to
July 1965.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan, which denied the above claim. The Board
remanded this case in June 2003.
The veteran served in the Vietnam Era and asserts that he had
herbicides exposure while stationed off the shores of
Vietnam. The Court, in Haas v. Nicholson, 20 Vet. App. 257
(2006), reversed a decision of the Board which denied service
connection for disabilities claimed to have resulted from
exposure to herbicides. On September 21, 2006, VA's
Secretary imposed a stay at the Board on the adjudication of
claims affected by Haas. The specific claims affected by the
stay include those involving claims based on herbicide
exposure in which the only evidence of exposure is the
receipt of the Vietnam Service Medal or service on a vessel
off the shore of Vietnam. The Board notes that although the
Court's decision was in turn reversed by the U.S. Court of
Appeals for the Federal Circuit in Haas v. Peake, 525 F.3d.
1168 (Fed. Cir. 2008), the Secretary's stay remains in
effect. However, as set forth below and although otherwise
alleged, the record clearly reflects that the veteran was not
stationed off the shores of Vietnam. As such, his appeal is
not subject to the stay.
FINDINGS OF FACT
1. The veteran had service in the Vietnam era, but he did
not serve in Republic of Vietnam during the Vietnam era or in
the waters offshore.
2. Cancer of the larynx was not manifest during service, was
not manifest within one year of separation, and is not
attributable to service.
CONCLUSION OF LAW
Cancer of the larynx was not incurred in or aggravated by
service and may not be presumed to have been incurred or
aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the claimant's claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Prior to the initial adjudication of the claimant's claim, a
letter dated in August 2001. Subsequent VCAA letters were
sent in May 2004, September 2006, June 2007, and November
2007. Cumulatively, the VCAA letters fully satisfied the
duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The claimant was aware that it was ultimately the
claimant's responsibility to give VA any evidence pertaining
to the claim. The VCAA letter told the claimant to provide
any relevant evidence in the claimant's possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). ). In particular, the VCAA notification:
(1) informed the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) informed the claimant about the information and evidence
that VA will seek to provide; and (3) informed the claimant
about the information and evidence that the claimant is
expected to provide.
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a statement of the case (SOC)
or supplemental statement of the case (SSOC) can constitute a
"readjudication decision" that complies with all applicable
due process and notification requirements if adequate VCAA
notice is provided prior to the SOC or SSOC. See Mayfield v.
Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007)
(Mayfield III). As a matter of law, the provision of
adequate VCAA notice prior to a readjudication "cures" any
timing problem associated with inadequate notice or the lack
of notice prior to an initial adjudication. See Mayfield
III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-
34).
In any event, the Board finds that any deficiency in the
notice to the claimant or the timing of these notices is
harmless error. See Overton v. Nicholson, 20 Vet. App. 427,
435 (2006) (finding that the Board erred by relying on
various post-decisional documents to conclude that adequate
38 U.S.C.A. § 5103(a) notice had been provided to the
claimant, the United States Court of Appeals for Veterans
Claims (Court) found that the evidence established that the
claimant was afforded a meaningful opportunity to participate
in the adjudication of the claim, and found that the error
was harmless, as the Board has done in this case.)
In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal
Circuit held that any error by VA in providing the notice
required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1)
is presumed prejudicial, and that once an error is identified
as to any of the four notice elements the burden shifts to VA
to demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant, see Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrate an awareness of
what was necessary to substantiate his or her claim.")
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007));
(2) that a reasonable person could be expected to understand
from the notice what was needed; or (3) that a benefit could
not have been awarded as a matter of law. Sanders, 487 F.3d
at 889. Additionally, consideration also should be given to
"whether the post-adjudicatory notice and opportunity to
develop the case that is provided during the extensive
administrative appellate proceedings leading to the final
Board decision and final Agency adjudication of the claim ...
served to render any pre-adjudicatory section 5103(a) notice
error non-prejudicial." Vazquez-Flores.
If any notice deficiency is present in this case, the Board
finds that the presumption of prejudice on VA's part has been
rebutted in this case by the following: (1) based on the
communications sent to the claimant over the course of this
appeal, the claimant clearly has actual knowledge of the
evidence the claimant is required to submit in this case; and
(2) based on the claimant's contentions as well as the
communications provided to the claimant by VA, it is
reasonable to expect that the claimant understands what was
needed to prevail. See Sanders; see also Simmons v.
Nicholson, 487 F. 3d 892 (2007).
VA also fulfilled its duty to obtain all relevant evidence
with respect to the issue on appeal. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. The claimant's service treatment records,
service personnel records, VA medical treatment records, and
identified private medical records have been obtained, to the
extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
There is no indication in the record that any additional
evidence, relevant to the issue decided herein, is available
and not part of the claims file. The records satisfy
38 C.F.R. § 3.326.
The Board also finds that a VA examination is not necessary
to determine whether his cancer of the larynx is related to
his period of honorable service, as the standards of the
recent decision of the Court in McLendon v. Nicholson, 20
Vet. App. 79 (2006), have not been met. Under McLendon, VA
must provide a medical examination in a service connection
claim when there is (1) competent evidence of a current
disability or persistent or recurrent symptoms of a
disability, and (2) evidence establishing that an event,
injury, or disease occurred in service or establishing
certain diseases manifesting during an applicable presumptive
period for which the claimant qualifies, and (3) an
indication that the disability or persistent or recurrent
symptoms of a disability may be associated with the veteran's
service or with another service-connected disability, but (4)
insufficient competent medical evidence on file for the VA to
make a decision on the claim. Id at 81.
In this case, cancer of the larynx was neither manifest nor
diagnosed during service. None of his service medical
records show treatment for cancer of the larynx. Also
significant is the fact that cancer of the larynx was first
identified more than two decades after his period of
honorable service. In light of these findings, the second
and third prongs of McLendon have not been met. Accordingly,
the Board finds that no further action is necessary to meet
the requirements of the VCAA or the Court.
Since the Board has concluded that the preponderance of the
evidence is against the claim of service connection, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot, and no
further notice is needed. See Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006).
In summary, the Board finds that "it is difficult to discern
what additional guidance VA could have provided to the
veteran regarding what further evidence he should submit to
substantiate his claim." Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc) (observing that "the VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims."); Reyes v. Brown, 7 Vet. App. 113,
116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(both observing circumstances as to when a remand would not
result in any significant benefit to the claimant).
Competency and Credibility
The veteran contends that his larynx cancer is due to
inservice herbicides exposure. With regard to lay evidence,
the Board must initially evaluate if the evidence is
competent. If so, credibility must be assessed.
The veteran can attest to factual matters of which he had
first-hand knowledge, e.g., experiencing pain in service,
reporting to sick call, being placed on limited duty, and
undergoing physical therapy. See Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). However, the veteran as a lay
person has not been shown to be capable of making medical
conclusions, thus, his statements regarding causation are not
competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). Competent medical evidence means evidence provided
by a person who is qualified through education, training or
experience to offer medical diagnoses, statements or
opinions. See Duenas v. Principi, 18 Vet. App. 512, 520
(2004). A layperson is generally not capable of opining on
matters requiring medical knowledge. Routen v. Brown, 10
Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet.
App. 124, 127 (1998). Thus, while the veteran is competent
to report what comes to him through his senses, he does not
have medical expertise. See Layno v. Brown, 6 Vet. App. 465
(1994).
However, the Federal Circuit has held that lay evidence is
one type of evidence that must be considered and competent
lay evidence can be sufficient in and of itself. The Board,
however, retains the discretion to make credibility
determinations and otherwise weigh the evidence submitted,
including lay evidence. See Buchanan v. Nicholson, 451 F.3d
1331, 1335 (Fed. Cir. 2006). This would include weighing the
absence of contemporary medical evidence against lay
statements.
In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court
indicated that varicose veins was a condition involving
"veins that are unnaturally distended or abnormally swollen
and tortuous." Such symptomatology, the Court concluded,
was observable and identifiable by lay people. Because
varicose veins "may be diagnosed by their unique and readily
identifiable features, the presence of varicose veins was not
a determination 'medical in nature' and was capable of lay
observation." Thus, the veteran's lay testimony regarding
varicose vein symptomatology in service represented competent
evidence.
In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007),
the Federal Circuit determined that lay evidence can be
competent and sufficient to establish a diagnosis of a
condition when (1) a layperson is competent to identify the
medical condition (noting that sometimes the layperson will
be competent to identify the condition where the condition is
simple, for example a broken leg, and sometimes not, for
example, a form of cancer), (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional. The relevance of lay evidence is not
limited to the third situation, but extends to the first two
as well. Whether lay evidence is competent and sufficient in
a particular case is a fact issue.
However, although the veteran is competent in certain
situations to provide a diagnosis of a simple condition such
as a broken leg or varicose veins, the veteran is not
competent to provide evidence as to more complex medical
questions. See Woehlaert v. Nicholson, 21 Vet. App. 456
(2007).
Once evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency ("a legal concept
determining whether testimony may be heard and considered")
and credibility ("a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted")). See Barr.
The issue does not involve a simple diagnosis. See Jandreau;
see also Woehlaert. The claimant is not competent to provide
more than simple medical observations. The current diagnosis
may not be diagnosed via lay observation alone and the
veteran is not competent to provide a complex medical opinion
regarding the etiology of the claimed disability. See Barr.
Thus, the veteran's lay assertions are not competent or
sufficient in this regard.
Service in the Waters Offshore Vietnam
The veteran maintains that he was stationed aboard the USS
Enterprise and also with the Attack Squadron (VA) 66 which
operated off of the USS Enterprise. He contends that
chemicals were present on the ship and on the aircraft. He
also asserts that the USS Enterprise was stationed offshore
of Vietnam during the Vietnam war for three months.
The veteran was assigned to the Attack Squadron (VA) 66 from
May to July 1965. This squadron operated off of the USS
Enterprise.
In May 2002, the National Personnel Records Center (NPRC)
indicated that there was no record that the veteran was
exposed to herbicides. In September 2002, the NPRC verified
that the veteran had no in-country service in Vietnam.
In June 2003, the Board remanded this case. The following
was requested with regard to the veteran's service:
(1) Contact the NPRC, or any other appropriate agency,
and request the veteran's complete personnel records,
showing dates, places, and units of assignment.
(2) Contact the Naval Historical Center, or any other
appropriate agency, and request information such as unit
records, deck logs, and/or ship station histories that
will verify the locations of the USS Enterprise (CVA(N)
65) during the "Med/World Cruise" between February and
October 1964. Specifically, was that aircraft carrier
stationed in the waters off Vietnam for any period of
time.
(3) If, and only if, the RO obtains evidence showing the
USS Enterprise was stationed in the waters off Vietnam
during the time period that the veteran was assigned to
that aircraft carrier, then the RO should contact the
Naval Historical Center, or any other appropriate
agency, and request documents showing the mission(s) of
the aircraft assigned to that carrier. Specifically,
were any aircraft involved in missions involving the
spraying of Agent Orange.
In September 2004, the National Archives and Records
Administration informed VA that they had never seen an
instance where a capital ship or a nuclear-propelled ship
such as an aircraft carrier like the USS Enterprise entered a
Vietnamese port. Furthermore, the USS Enterprise was
stationed in the Mediterranean in the early 1960's. The only
time that the Enterprise was in the Pacific Ocean during 1964
was during Operation Sea Orbit which was a publicity driven
event that featured three nuclear-powered ships, including
the USS Enterprise, making a 30,565 voyage around the world
to demonstrate the ability of nuclear powered ships to
operate free from the usual ties to shore bases. The three
ships left Spain on July 29, 1964 and reached Norfolk on
October 2, 1964. The ship was anchored in Pakistan from
August 19-22, 1974; moored in Australia from September 2-5,
1964; anchored in New Zealand from September 8-9, 1964; and
at Rio de Janeiro from September 23-25, 1964. At no time was
the USS Enterprise stationed in the Pacific.
Thereafter, a ship history was received for the USS
Enterprise. The ship's mission regarding Operation Sea Orbit
was discussed. It was noted that the route would take the
ships (the USS Enterprise and others) down the Western
coastline of Africa, around the Cape of Good Hope, across the
Indian and Pacific Oceans, round the Cape of Good Horn at the
tip of South America, and up along the Atlantic coastline of
the latter continent to home (the United States). The
history did not reflect that the USS Enterprise was stationed
in the waters off shore of Vietnam during the time period
from January to October 1964. The history was accompanied by
a history of the Second VA-66 which noted that from July to
October 1964, it participated in Operation Sea Orbit with the
USS Enterprise. There was no indication that there was any
contact with the waters off shore of Vietnam during the time
period from January to October 1964.
Thus, although the veteran served during the Vietnam era, he
did not serve in Vietnam nor was he stationed in a vessel
located in the waters off the shores of Vietnam.
Service Connection on the Basis of Exposure to Herbicides
A chronic, tropical, or prisoner-of-war related disease, or a
disease associated with exposure to certain herbicide agents,
listed in 38 C.F.R. § 3.309 will be considered to have been
incurred in or aggravated by service under the circumstances
outlined in this section even though there is no evidence of
such disease during the period of service. No condition
other than the ones listed in 38 C.F.R. § 3.309(a) will be
considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116;
38 C.F.R. § 3.307(a).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975 shall be
presumed to have been exposed during such service to an
herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. The last date on which such a veteran
shall be presumed to have been exposed to an herbicide agent
shall be the last date on which he or she served in the
Republic of Vietnam during the period beginning on January 9,
1962, and ending on May 7, 1975.
If a veteran, who served in the Republic of Vietnam was
exposed to an herbicide agent during active military, naval,
or air service, the following diseases shall be service-
connected if the requirements of 38 U.S.C.A. § 1116, 38
C.F.R. § 3.307(a)(6)(iii) are met, even though there is no
record of such disease during service, provided further that
the rebuttable presumption provisions of 38 U.S.C.A. § 1113;
38 C.F.R. § 3.307(d) are also satisfied: chloracne or other
acneform diseases consistent with chloracne, Hodgkin's
disease, multiple myeloma, non-Hodgkin's lymphoma, acute and
subacute peripheral neuropathy, porphyria cutanea tarda,
prostate cancer, respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea), soft-tissue sarcomas (other
than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma), type II diabetes, and chronic lymphocytic
leukemia. 38 C.F.R. § 3.309(e).
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne, porphyria cutanea tarda, and acute
and subacute peripheral neuropathy shall have become manifest
to a degree of 10 percent or more within a year after the
last date on which the veteran was exposed to an herbicide
agent during active military, naval, or air service. 38
C.F.R. § 3.307(a)(6)(ii).
The Secretary of Veterans Affairs has determined that there
is no positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. See Notice, 59 Fed. Reg. 341-346
(1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996).
Section 2 of the Agent Orange Act of 1991, Pub. L. 102-4
(Act), codified in pertinent part at 38 U.S.C.A. §§ 1116(b)
and (c), provides that whenever the Secretary determines,
based on sound medical and scientific evidence, that a
positive association (i.e., the credible evidence for the
association is equal to or outweighs the credible evidence
against the association) exists between exposure of humans to
an herbicide agent and a disease, the Secretary will publish
regulations establishing presumptive service connection for
that disease. If the Secretary determines that a presumption
of service connection is not warranted, he is to publish a
notice of that determination, including an explanation of the
scientific basis for that determination. The Secretary's
determination must be based on consideration of reports of
the National Academy of Sciences (NAS) and all other sound
medical and scientific information and analysis available to
the Secretary.
Although 38 U.S.C. § 1116 does not define "credible," it does
instruct the Secretary to "take into consideration whether
the results [of any study] are statistically significant, are
capable of replication, and withstand peer review." Simply
comparing the number of studies which report a positive
relative risk to the number of studies which report a
negative relative risk for a particular condition is not a
valid method for determining whether the weight of evidence
overall supports a finding that there is or is not a positive
association between herbicide exposure and the subsequent
development of the particular condition. Because of
differences in statistical significance, confidence levels,
control for confounding factors, bias, and other pertinent
characteristics, some studies are clearly more credible than
others, and the Secretary has given the more credible studies
more weight in evaluating the overall weight of the evidence
concerning specific diseases.
Section 3 of the Act directs the Secretary of VA to seek to
enter into an agreement with the NAS to review and summarize
the scientific evidence concerning the association between
exposure to herbicides used in the Republic of Vietnam and
each disease suspected to be associated with such exposure.
Claims based on Agent Orange exposure are unique in that
entitlement, under the presumptions codified in 38 U.S.C.A. §
1116 and 38 C.F.R. §§ 3.307 and 3.309, is based on an
analysis of scientific evidence. Section 3 of the Agent
Orange Act of 1991 directed the Secretary of VA to seek to
enter into an agreement with NAS to review and summarize the
scientific evidence concerning the association between
exposure to herbicides used in the Republic of Vietnam and
each disease suspected to be associated with such exposure.
The Secretary determined, based on sound medical and
scientific evidence, that a positive association (i.e., where
the credible evidence for the association was equal to or
outweighed the credible evidence against the association)
existed between exposure to an herbicide agent and the
disorders listed in the statute. See 64 Fed. Reg. 59232,
592233 (Nov. 2, 1999).
In addition, the Secretary has published a list of specific
conditions for which a presumption of service connection
based on exposure to herbicides used in Vietnam during the
Vietnam era is not warranted. These include hepatobiliary
cancers, nasal/nasopharyngeal cancer, bone cancer, female
reproductive cancers, breast cancer, renal cancer, testicular
cancer, leukemia, abnormal sperm parameters and infertility,
cognitive and neuropsychiatric disorders, motor/coordination
dysfunction, chronic peripheral nervous system disorders,
metabolic and digestive disorders, immune system disorders,
circulatory disorders, respiratory disorders (other than
certain respiratory cancers), skin cancer, gastrointestinal
tumors, bladder cancer, brain tumors, and any other condition
for which the Secretary has not specifically determined a
presumption of service connection is warranted. See Notice,
64 Fed. Reg. 59232-59243 (1999).
As noted, did not serve in Vietnam nor was he stationed in a
vessel located in the waters off the shores of Vietnam.
Thus, there he is not presumed to have been exposed to Agent
Orange or other herbicide agents during his service which
occurred during the Vietnam era.
Accordingly, cancer of the larynx may not be presumed to have
been incurred during active military service due to herbicide
exposure including Agent Orange exposure and service
connection is not warranted for that claimed disability on
that basis.
The Federal Circuit has determined that a claimant is not
precluded from establishing service connection with proof of
direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed.
Cir. 1994).
Service Connection on a Direct Basis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In addition,
a malignant tumor will be presumed to have been incurred in
or aggravated by service if it had become manifest to a
degree of 10 percent or more within one year of the veteran's
separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is
rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
Further, VA regulation provides that, with chronic disease
shown as such in service (or within an applicable presumptive
period under section 3.307) so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of an evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the inservice
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet.
App. 465 (1994).
The Court has consistently held that, under the law cited
above, "[a] determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service." Watson v. Brown,
4 Vet. App. 309, 314 (1993). This principle has been
repeatedly reaffirmed by the Federal Circuit which has
stated, "a veteran seeking disability benefits must establish
. . . the existence of a disability [and] a connection
between the veteran's service and the disability." Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990). To do so, the Board must assess the credibility
and weight of all the evidence, including the medical
evidence, to determine its probative value, accounting for
evidence that it finds to be persuasive or unpersuasive, and
providing reasons for rejecting any evidence favorable to the
appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992).
The service treatment record show no complaints, findings,
treatment, or diagnosis of cancer of the larynx. The July
1965 discharge examination revealed a normal mouth and
throat.
More than two decades later, VA treatment records show that
the veteran was diagnosed with a supraglottic tumor in the
pre-epiglottic fat on the right side and crossing the
midline. See October 1998 computerized tomography (CT)
report. Also, an October 1998 biopsy revealed a right
supraglottic mass which was invasive squamous cell carcinoma
as well as invasive squamous cell carcinoma in the right
pharyngeal epiglottic fold. The veteran underwent
chemotherapy and radiation treatment.
In July 1999, the veteran was afforded a VA examination. The
veteran was post-chemotherapy and radiation treatment at that
time. The examiner stated that the veteran had cancer of the
larynx, had received two course of chemotherapy, had received
one course of radiation, and was currently in remission.
In sum, the service treatment records are negative for larynx
cancer. The veteran's mouth and throat were normal when he
was separated. The silence and the normal findings
constitute evidence. See Forshey v. West, 12 Vet. App. 71,
74 (1998), aff'd sub nom. Forshey negative v. Principi, 284
F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition
of evidence encompasses "negative evidence" which tends to
disprove the existence of an alleged fact).
Post-service, larynx cancer was not manifest or diagnosed
within the initial year following the veteran's separation
from service. In October 1998, more than 20 years after
service discharge, the veteran was first diagnosed as having
larynx cancer.
As noted, the veteran is not competent to provide a diagnosis
in this case or provide a medical opinion regarding the
etiology of claimed disability. Although he contends that
chemicals were present on the ship and on the aircraft, there
is no supporting evidence that the veteran was exposed to
herbicides at that time. The personnel records, NPRC
verification of no herbicides exposure, naval history
records, and letter of the National Archives and Records
Administration are more persuasive and probative than the
veteran's unsubstantiated allegations. In sum, there is no
competent medical evidence of any link between his the post-
service diagnosis of larynx cancer and service.
Accordingly, service connection is not warranted.
Conclusion
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38
C.F.R. § 3.102. The preponderance is against the veteran's
claim, and it must be denied.
ORDER
Service connection for larynx cancer, to include as due to
exposure to herbicides, is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs